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Public records, limited access

BARNSTABLE – Eric Bibler is one of those “love ’em or hate ’em” guys.

If he’s on your side in the fight against local wind energy projects, you probably dig his tactics. If you’re the target of his prolific – some say vitriolic – emails and public records or Open Meeting Law challenges, maybe not so much.

Whatever your personal feelings toward him, it’s hard to argue that the Connecticut resident, who has made it his business to fight wind energy projects on Cape Cod and elsewhere, is anything but persistent.

His multi-page missives fill email inboxes across the Cape. By his own estimate, he has made more than 20 public records requests of Barnstable County officials alone.

It’s also hard to argue that – at least in some cases – he doesn’t deserve the information he’s requesting.

Now, a series of bills wending their way through the state Legislature could make life easier on the Eric Biblers of the world and the government agencies he and others regularly pepper with requests for information.

The goal of the bills is to make public records and the information public officials use to make their decisions more accessible, said the legislation’s lead sponsor, state Sen. James Eldridge, D-Acton.

“I think the more transparency, the better,” Eldridge said.

The first two bills are in front of the Joint Committee on State Administration and Regulatory Oversight and the third is before the Joint Committee on the Judiciary.

The three bills include provisions to create a point person at state agencies to help with records requests, limit fees for such requests and make more documents available online or in an electronic format.

“There’s a growing consensus that the Public Records Law in Massachusetts is broken,” said Gavi Wolfe, a Massachusetts American Civil Liberties Union staff attorney who helped write the legislation.

The state’s Public Records Law has not been substantially updated since it was passed in 1973, Wolfe said.

“It doesn’t address, let alone capitalize, on the technology of the 21st century,” he said of the current law.


Another problem is the cost of pursuing public records, Wolfe said. “It costs more money to get records today than it should,” he said.

Other states, like New Jersey, have passed changes to records laws that bring costs of copying documents in line with actual costs, he said.

One of the bills sponsored by Eldridge – an Act to Improve Access to Public Records – would reduce the cost of copies from upward of a dollar a page in some cases to 5 cents per letter-size page or 7 cents for larger pages.

The bill would prohibit agencies from charging for work that takes less than two hours to produce the requested record, for time spent making photocopies or for time retrieving information electronically. It would also prohibit charging for the review of the content to determine what must be removed under a series of existing exemptions under the law.

If a records request ends up in court and the requestor proves the documents are public, the court could award attorneys’ fees, according to the legislation.

“It does provide some incentive for government agencies to respond positively to records requests,” Wolfe said.

Massachusetts is “by far the outlier” on the issue of attorneys’ fees, Wolfe said, adding that the federal government and 45 states across the country already allow for the levying of such fees on public records cases and, of those, more than a dozen require it.

“This legislation is a really modest step in context,” he said.

Residents and organizations have the right to appeal denials of public records requests to the Secretary of State’s Office, but the agency has no real enforcement capabilities. Although there is a provision that allows for the Public Records Division to refer cases to the state Attorney General’s Office or local district attorneys, it is seldom used, Wolfe said.

Appeals to the Public Records Division were up from 277 in 2010 to 375 in 2011, the department’s spokesman, Brian McNiff, said.

Eldridge’s bills would not change what is or is not a public record, McNiff said.

“The most fundamental problem is the Public Records Division has zero enforcement powers,” Bibler said.

On top of his public records requests, Bibler also has three Open Meeting Law complaints filed with the state Attorney General’s Office against the Cape Light Compact, the Cape and Vineyard Electric Cooperative and Barnstable County commissioners.

He has more in the works, he said.


Bibler has consistently refused to pay fees attached to his requests, claiming the charges are not in line with the true cost of producing the documents and that doing so electronically would be cheaper and easier.

In one instance, the charge for documents requested from the Cape and Vineyard Electric Cooperative was estimated at almost $10,000, Bibler said.

In other instances a $25 administrative fee has been attached to the production of even one page, he said.

“They’re using these laws as a sword and a shield,” Bibler said. “They’re basically daring me to spend hundreds of dollars.”

In response to allegations that he is using the public records requests and Open Meeting Law complaints to kill off the cooperative and wind energy projects, Bibler says that, according to the law, his motive is irrelevant to whether or not he should have access to public records.

The Cape Light Compact and Cape and Vineyard Electric Cooperative comply with the Public Records Law, said Barnstable County Assistant Administrator Maggie Downey, who holds positions on both of the regional energy agencies.

Typically, records requests are handled quickly, but in cases where requests are unclear, responding can be difficult. Downey said Bibler’s requests often take up multiple pages and include questions as well as document requests.

“There is a responsibility on the part of somebody requesting a document to be clear,” she said.


While the idea of charging less for copies may be appropriate in some cases, government agencies often pay more under copier leases than the public does at copy stores, she said.

The Barnstable town clerk’s office handles 10,000 vital records requests each year, Town Clerk Linda Hutchenrider said.

In some cases, individuals have made requests that are overly broad, Hutchenrider said.

“A lot of people don’t know exactly how to approach a request,” she said.

Putting public records on the Internet has reduced the amount of requests, but providing information online can spark privacy concerns, Hutchenrider said.

Photographs of homes showing entrances and exists, for example, “spooks a lot of people out,” she said.

Both Hutchenrider and Downey said uploading documents to the Internet is a good idea, but it can also take a lot of time and effort.

The state Department of Environmental Protection has already scanned millions of pages and put them online, said agency spokesman Edmund Coletta.

The agency also has a new computer system that tracks public records requests to make sure responses are issued within the required 10-day window, Coletta said.

Since April 2010 when the system was installed, the DEP has received 621 public records requests, he said.

State Sen. Dan Wolf, D-Harwich, said he fully supports making records more accessible online but doing so must be weighed against the cost, especially in the current fiscal environment.

“We have to be mindful as we implement these technologies that we do it in a way that is as cost-effective as possible,” Wolf said, adding that he is looking forward to the public record bills being debated in the Legislature.